Raym. 219. 1 Ven. 171. 2 Keb. 825. Raym. 445. Dyer, 234. 1 Bulst. 197, 198. 2 Bulst. 290. 1 Ven. 172, 173. Raym. 445. Dyer, 234, 363. Dyer, 234. Dyer, 234. See the books above cited. The 3 Jac. 1. c. 4. as far as concerns the Sect. 28. First, That the obligation to take the said oath continued after the death of Queen Elizabeth, though the statutes say nothing of her successors; and the like resolution also has been made in relation to the oaths appointed by subsequent statutes. Sect. 29. Secondly, That in a commission authorising persons to tender the said oath, a general description of the persons to whom it shall be tendered is sufficient, without naming them particularly by their names. Sect. 30. Thirdly, That if any person who tendered the oath as bishop, was not a bishop at that time, the defendant may give it in evidence upon the general issue. Sect. 31. Fourthly, That the said oath must in substance be taken in the very words expressed in the acts, and cannot be qualified with any reserve whatever: yet it hath been resolved, that to use the words "in conscience" instead of " in my conscience," or "sea of Rome" instead of " see of Rome," makes no material variance. Sect. 32. Fifthly, That a certificate of a refusal of the said oath made to the judges of the said court of the King's Bench by name, and not to the king in his said court, is sufficient within the meaning of the statute. Sect. 33. Sixthly, That an ecclesiastical person is well described in such a certificate by the addition of legum doctor, et sacris ordinibus constitutus, without adding clericus, &c. Sect. 34. Seventhly, That such a certificate being entered of record, as brought into court such a day and year per A. B. Cancellar. of such a bishop, is good, without entering that it was so brought per mandatum episcopi. Sect. 38. Eighthly, That the trial must be by a jury of the county wherein the oaths were refused; for the statute only authorises an indictment by a jury of the county wherein the court sits. Sect. 56. Ninthly, That any mis-recital of the very words of the oath, in an indictment for not taking it, is erroneous. Sect. 37. By 3 Jac. 1. c. 4. s. 13, 14. "Any bishop, or two "justices of peace, whereof one is to be of the quorum, might oaths, is repeal-"tender the oath of obedience therein prescribed, to any person "above the age of eighteen years, being under the degree of "nobility, and convicted or indicted of recusancy, or not having "received the sacrament twice in the year past, and also to any ed by 1 W. & M. c. 8. s. 2. Skinner, 11. suspected stranger who shall not purge himself upon oath; "and shall certify the names of such as take the said oath to the "next quarter sessions, and commit those who refuse it till the "next assizes or sessions, where the same shall be again ten"dered; and if the said persons, or any other persons whatsoever of the age of eighteen years, other than noblemen or "noblewomen, shall there refuse to take it, they incur a præmu"nire, unless they be femes covert, who shall be committed till they take it." Sect. Sect. 38. By 3 Jac. 1. c. 4. s. 41. "The lords of the council See 31 Geo. 3. "in like manner may tender the said oath to any nobleman or c. 32. "woman of the age of eighteen years, who refusing the same ❝ incur a præmunire, femes covert excepted." 66 Sect. 39. By 7 Jac. 1. c. 6. s. 26, 27. "All persons whatsoever, as well ecclesiastical as temporal, of what estate, dignity, "pre-eminence, sex, quality or degree soever he or she shall be, "above the age of eighteen years, being in that act mentioned " and intended, shall take the said oath; and any privy counsel"lor, or bishop within his diocese, may require any baron or baroness, of the age of eighteen years; and any two justices of "the peace, whereof one to be of the quorum, may require any See Cawley, "other person of that age to take it. And if any person of or 246, &c. "above the said age and degree shall be presented, &c. for not "coming to church, &c. then three of the privy council, whereof "the lord chancellor, &c. to be one, shall require such person to "take the said oath.-And if any person whatsoever, of the said age and under the said degree, shall be presented, &c. for not coming to church, &c. or if the minister, &c. shall complain to any justice of peace, &c. and the justice shall find cause of suspicion, then any one justice of peace shall require such person to take the said oath, &c. And all such persons refusing a "tender of the said oath, shall be bound over to the assizes or the "sessions, where, if they refuse again, they incur a pramunire:" And s. 27." All such refusers are disabled to execute any public place of judicature, or bear any other office (being no office of "inheritance or ministerial function), or to practise the common "or civil law, physic or surgery, or the art of an apothecary." 66 66 66 66 131. Sect. 40. In the construction of these statutes it hath been re- 12 Co. 130, solved, that the justices of peace, &c. may send their warrant to bring such persons before them, but that they cannot authorise the constable to break open the doors to take them. 6 Geo. 3. c. 53. Sect. 41. But by 1 William & Mary, c. 8. the oaths of supremacy and obedience prescribed by these acts were abrogated, and the following oath and declaration substituted in their room: “I A. B. do sincerely promise and swear, that I will be faithful Vide, 1 Geo. 1. "and bear true allegiance to his majesty KING GEORGE.""I c. 13. "A. B. do swear, that I do from my heart abhor, detest, and abjure, as impious and heretical, that damnable doctrine and "position, that princes excommunicated or deprived by the pope, or any authority of the see of Rome, may be deposed or mur"dered by their subjects, or any other whatsoever." "And I "do declare, that no foreign prince, person, prelate, state, or potentate, hath or ought to have any jurisdiction, power, supe"riority, pre-eminence or authority ecclesiastical or civil within "this realm." 66 Sect. 42. And by 1 Will. & Mary, c. 8. s. 3, 4, 5. "All per- Vide ch. 6. "sons who are required to take, or authorised to tender the said "abrogated oaths, or either of them, are in like manner required "and authorised to take and tender the said oath and declaration, "under the same penalties, &c." Sect. 1 Comm. 368. 4 Comm. 115, 116, 123. Sect. 43. By 7 Will. 3. c. 24. "Serjeants at law, counsellors, "attornies, solicitors, proctors, clerks or notaries, practising as "such in any court whatsoever, without taking the said oaths "and subscribing the said declaration, incur a præmunire.” No descendant" of Geo. 2. other than, &c. capa ble of contracting matrimony without consent, &c. Persons who + Sect. 44. THE TENTH OFFENCE of this nature, viz. Illegally solemnizing marriage with any of the royal family, or assisting therein, is made a pramunire by 12 Geo. 3. c. 11. which enacts that no descendant of the body of his late majesty king George the Second, male or female (other than the issue of princesses who have married, or may hereafter marry, into foreign families), "shall be capable of contracting matrimony without the previous "consent of his majesty, his heirs or successors, signified under "the great seal, and declared in council (which consent, to pre"serve the memory thereof, is hereby directed to be set out in "the licence and register of marriage, and to be entered in the "books of the privy council); and that every marriage, or matri"monial contract, of any such descendant, without such consent "first had and obtained, shall be null and void, to all intents and "6 purposes whatsoever." Sect. 45. By 12 Geo. 3. c. 11. s. 2. "In case any such de"scendant of the body of his late majesty king George the "Second, being above the age of twenty-five years, shall persist "in his or her resolution to contract a marriage disapproved of, “ or dissented from, by the king, his heirs or successors; then "such descendant, upon giving notice to the king's privy council, "which notice is hereby directed to be entered in the books "thereof, may at any time from the expiration of twelve calendar "months after such notice given to the privy council as afore"said, contract such marriage; and his or her marriage with the person before proposed, and rejected, may be duly solemnized, "without the previous consent of his majesty, his heirs or suc66 cessors; and such marriage shall be good, as if this act had "never been made, unless both houses of parliament shall, be"fore the expiration of the said twelve months, expressly declare "their disapprobation of such intended marriage. 66 † By 12 Geo. 3. c. 11. s. 3. "Every person who shall knowingly or wilfully presume to solemnize, or to assist, or to be present at the celebration of any marriage with any such de"scendant, or at his or her making any matrimonial contract, "without such consent as aforesaid first had and obtained, except " in the case abovementioned, shall, being duly convicted thereof, "incur and suffer the pains and penalties ordained and provided "by the statute of provisions and præmunire.” And now I am in THE SECOND PLACE to consider those offences against the authority of king and parliament, which come under the notion of præmunire. Maliciously to preach or affirm that the Preten- « der has any right to THE Sect. 44. By 6 Ann. c. 7. "If any person shall maliciously and directly, by preaching, teaching, or advised speaking, declare, maintain, and affirm, that the pretended Prince of Wales hath any right or title to the crown of these realms, or that any "other person or persons hath or have any right or title to the 66 same, "same, otherwise than according to 1 Will. & Mary, c. 2. and crown, is a ❝12 Will. 3. c. 2. and the acts then lately made in England and præmunire. "Scotland, mutually for the union of the two kingdoms; or that "the kings or queens of this realm, with the authority of parlia ment, are not able to make laws to limit the crown and the de scent, &c. thereof, shall incur a præmunire.” the sixteen peers By 6 Ann. c. 23. "It shall not be lawful for the peers of If any peer of "Scotland assembled and met together for the electing sixteen Scotland met for peers to fit and vote in the house of peers in the parliament of the election of "Great Britain, to act, propose, debate, or treat of any other propose any "matter or thing whatsoever, except only the election of the said other matter, he "sixteen peers; and every peer who shall at such meeting pre- pramunire. is guilty of a "sume to propose, debate, or treat of any other matter or thing "contrary to the direction of this act, shall incur the penalty of "a præmunire." 66 Sect. 45. As to THE SECOND GENERAL POINT of this chapter, viz. In what manner offences of this nature are punished. It is to be observed, that most of the statutes of pramunire refer the punishment to 16 Rich. 2. c. 5. which enacts, that those who offend against the purport thereof "shall be put out of the king's protection, and their lands and tenements, goods and chattels "forfeited to our lord the king; and that they be attached by "their bodies, if they may be found, and brought before the king " and his council, there to answer to the cases aforesaid; or that process be made against them by pramunire facias, in manner "as is ordained in other statutes of provisors.' 12 Co. 68. Sect. 46. Inasmuch as this statute expressly saith, that such offenders shall be put out of the king's protection, and also the statute of 25 Edw. 3. s. 5. c. 22. had farther added, "that any "one might do with a purchaser of the provisions therein prohi"bited as with the king's enemy, and that he who should offend "against such a one in body, lands, or goods, should be excused," it was formerly holden, that a person attainted in a pramunire Co. Lit. 130. might lawfully be slain by any one, as being the king's enemy, 3 Inst. 128. and out of the protection of the laws; but the latter opinions B. Cor. 197. seem to have disapproved of this severity. However, it is ex- Jenk. 199. pressly enacted by 5 Eliz. c. 1. s. 21, 22. " that it shall not be "lawful to kill any person attainted in præmunire, saving such pains of death or other hurt or punishment as heretofore might, "without danger of law, be done upon any person that shall send or bring into the realm, or within the same shall execute, any process, &c. from the see of Rome." Staunf. 44. Sect. 47. But howsoever the law may stand in relation to such 1 Inst. 130. persons as are within the exception of this act, it is certain that 1 Eliz. 1. c. 39. no person whatsoever attainted of any pramunire can bring an Plow. 97. action for any injury whatsoever; and that no one knowing him 4 Comm. 118, to be guilty can with safety give him aid, comfort, or relief. 3 Jac. 333. Sect. 48. But it hath been resolved, that those general words in the statute, 16 Rich. 2. c. 5. that "all the lands and tenements "shall be forfeited," extend not to land entailed after the death of the offender. Sect. 1 Inst. 130. 2 Lev. 169. C. Car. 172. 1 Sect. 49. Also it hath been resolved, that a statute, by appoint→ ing that an offender shall incur the penalty and danger mentioned in the 16 Rich. 2. c. 5. does not confine the prosecution for the offence to the particular process thereby given. The following offences also have been made subject to the penalties of a præmunire. 1. To molest the possessors of abbey lands granted by parliament to Henry the Eighth and Edward the Sixth, 1 & 2 Ph. & Mary, c. 8. s. 40. 2. To obstruct the process of making gunpowder, or to prevent the importation of the ingredients of which it is made, by virtue of a pretended authority from the crown. 16 Car. 1. c. 21. 1 Jac. 2. c. 8. 3. To send any subject of this realm a prisoner beyond the seas in defiance of the habeas corpus act, 31 Car. 2. st. 2. See book 2. chap. sect. 4. To conspire to avoid the seizure or forfeiture upon the importation of cattle, as mentioned in the act, 20 Car. 2. c. 7. 5. To project any scheme by public subscription to the prejudice of great numbers in their trade, and similar to the South-Sea project. 6 Geo. 1. ch. 18. See Str. 472. L. Ray, 1361. post. ch. 2 R. 3. 10. S. P. C. 37. 3 Inst. 36. CHAP. V. OF MISPRISION OF TREASON. (1) THE word "misprision" has not any certain signification, but is generally applied to all such high offences as are under the degree of capital, and nearly bordering thereupon. It is said, that a misprision is contained in every treason or felony whatsoever, and that one who is guilty of felony or treason may be proceeded against for a misprision only, if the king please. 4 Comm. 119. Hudson of the court of star-chamber, MSS. in Mus. Brit. MISPRISIONS are generally said to be twofold.-First, Negative misprisions, which consist in the omission of something which ought to be done.-Secondly, Positive misprisions, which consist in some misdemeanor actually committed. Sect. 2. The negative misprision more immediately against the king is commonly called misprision of treason, which is an offence consisting in the bare knowledge and concealment of high treason (whether it be such by 25 Edw. 3. or subsequent statutes) without Hale, 48. 371. any degree of assent thereto; and this is declared to be a misprision only by 1 & 2 Mary, c. 10. But at common law, any delay in discovering high treason, whatever excuses the party might have for it, was deemed an assent to it, and consequently high treason. Sum. 127. S. P. C. 37. Kely. 17, 21. 4 Comm. 120. Sect. 3. And at this day, if the concealment of high treason be accompanied with any circumstances which shew an approbation thereof, it amounts to high treason; as if one, having notice before-hand that persons designed to meet in order to conspire (1) By the law as it stood in the time of Edw. I. we learn from Bracton, it was a most imperious duty to discover immediately to the king, or his ministers, any treasons which a man knew to be in contemplation against him. Having described of what treason or the læsæ majestatis consisted, viz. "ut si quis ausu temerario machinatus sit in mortem domini regis, vel aliquid egerit vel agi procuraverit ad seditionem domini regis vel exercitus sui, vel procurantibus auxilium et concilium præbuerit, licet id quod in voluntate habuerit non perduxerit ad effectum, &c." against "Si sit aliquis qui alium noverit inde esse culpabilem vel in aliquo criminosum, statim et sine intervallo aliquo accedere debet ad ipsum regem si possit, vel mittere si venire non possit ad aliquem regi familiarem et omnia ei manifestare per ordinem. Non enim debet morari in uno loco per duas noctes, vel per duos dies antequam personam regis videat, nec debet ad aliqua negotia quamvis urgentissima se convertere, quia vix permittitur ei quod retro aspiciat." (Lib. 3. de Coronâ, p. 1186.) |